Many fishermen are asking what they can do to preserve fishing opportunities in the wake of ocean wind energy development. The answer is threefold: be aware of what is being proposed in your area; know what governmental body is in charge; and engage early and often in the regulatory processes.
Multiple state and federal entities have authority over ocean wind energy development. In federal waters, the Bureau of Ocean Energy Management (BOEM) has authority to lease the outer continental shelf to renewable energy developers. These include ocean wind, tidal, and wave energy developers. States have the authority to locate projects within their waters.
Projects in federal waters either are isolated or located within wind energy areas (WEAs). WEAs are best thought of as large areas zoned for wind energy development. Once created, a wind energy developer can apply to BOEM for a lease within the WEA. BOEM then expedites the review of a lease request in a WEA, and the project is fast-tracked.
Depending on developers’ interest, one or more wind farms can be sited within a WEA’s borders. For example, BOEM can issue up to five leases in the Massachusetts WEA and another four leases in the adjoining Rhode Island/Massachusetts WEA.
WEAs are not created in a vacuum. Instead, they are the product of state-centric intergovernmental task forces convened by BOEM. For example, the Massachusetts WEA was the product of the Massachusetts Renewable Energy Task Force, which worked with BOEM to delineate the boundaries of the WEA. BOEM then announced the proposed WEA and asked for public comment.
Several other states, including Maine, Rhode Island, New York, New Jersey, and North Carolina, have worked with BOEM to establish intergovernmental task forces.
The state-centric process creates major problems for fishermen, in large part because, for a fisherman homeported outside of a WEA state, the first time he is notified of a proposed WEA is when a notice is published in the Federal Register. So, in the case of the Massachusetts WEA, a fisherman who fishes off Massachusetts in federal waters, but is homeported outside of that state, was not given notice of the WEA – let alone a seat at the table in siting it – before it was delineated. At that point, the die was already cast.
A wind energy developer does not have to wait for a WEA to be created. It also can apply to BOEM to lease any portion of the outer continental shelf through an “unsolicited request.”
When this happens, BOEM has an obligation to first determine if there is competitive interest in the area from other developers. At the same time, BOEM must assess how the proposed project will impact other ocean users, including commercial and recreational fishermen.
The Long Island WEA grew out of an unsolicited request submitted to BOEM by the New York Power Authority.
There are opportunities to comment on an ocean wind developer’s requests for a lease in an area outside or inside a WEA when “Request for Interest” or “Call for Information” notices are published in the Federal Register.
Fishermen’s organizations should be on the lookout for these notices so that they and their members can comment on proposed projects, demonstrate where they fish with available hard data, and explain how the proposed project will affect their operations and safety. Fishing effort data, resource data, and socioeconomic data all are good things to use in support of comments.
Protecting fishing grounds
After these initial stages of the regulatory process, there are many additional stages involving the permitting and construction of a project that require fishermen’s input.
For example, once a WEA is created, BOEM has to take public comment on its environmental assessment and environmental impact statement for the WEA. BOEM then has to repeat that process for each individual lease proposal, taking public comment on proposed lease sales, site assessment activities, and construction and operation plans.
To date, BOEM’s initial understanding of fisheries-related issues has fallen woefully short of what is sufficient and necessary to protect commercial fishing interests.
Even though BOEM is bound by a memorandum of understanding to consult with the National Marine Fisheries Service before issuing leases, the agency has been slow to appreciate the impact wind energy projects will have if co-located on certain fishing grounds.
For example, the Massachusetts WEA originally was drawn to overlap the Nantucket Lightship Access Area, which is vitally important to scallopers. Fishermen also have not been notified in advance of a project, especially those homeported outside the state in which the project has been proposed.
To its credit, however, BOEM did respond to fishermen’s concerns raised during the comment process by reducing the size of both the Massachusetts WEA and Rhode Island/Massachusetts WEA (see CFN June 2011).
For the Massachusetts WEA, BOEM removed the original eastern portion because it overlapped the Nantucket Lightship Access Area. For the Rhode Island/Massachusetts WEA (see chart previous page), BOEM removed the middle bisect because fishing effort data demonstrated that more than four different fisheries operated there. Unfortunately, BOEM did not remove all of Cox’s Ledge, which any fisherman can tell you is incredibly important to multiple fisheries.
State projects
Wind energy developments in state waters also are being sited. Some state projects are an outgrowth of state coastal and marine spatial plans. It is imperative that fishermen participate early in the development of marine spatial plans, explaining where they fish. If they don’t, regulators cannot set those areas aside to prevent wind energy development from encroaching on their grounds.
Rhode Island, for example, located its “renewable energy zones” in areas away from where most fishing operations historically occur. The state’s coastal and marine spatial planning (CMSP) process helped lessen the impact wind energy development will have on fishermen in Rhode Island state waters.
Regional planning bodies
Federal CMSP processes will offer similar opportunities through the work of the Northeast and Mid-Atlantic Regional Planning Bodies (RPBs). Supported by the Northeast Regional Ocean Council (NROC) and the Mid-Atlantic Regional Council on the Ocean (MARCO) respectively, these RPBs are in their infancy and are still trying to figure out their objectives.
RPB members include one regional fishery management council member and state, federal, and tribal officials. The fishing industry does not have formal representation on the RPBs, so fishermen and fishermen’s associations must engage at every opportunity to advocate for their interests.
The dizzying array of venues for ocean wind development – BOEM WEAs, unsolicited requests in federal waters, state projects, and CMSP – mean that all fishermen must stay vigilant.
Call your local representatives to get a sense of what proposals may be percolating in waters where you fish. Engage with your regional fishery management council and governor’s office to stay abreast of proposed projects. Contact your industry trade associations. Look beyond where you are homeported and pay attention to what’s happening in waters off the states where you fish. Compile useful data and make your arguments early and often. Regulators have a duty to respond to your concerns, but first, they must hear from you.
Michele Hallowell is an associate in the Washington, DC office of Kelley, Drye and Warren, LLP and former in-house counsel to the Maine Lobstermen’s Association.
Back to the July 2013 Issue of CFN
